Opinion
D077138
04-16-2021
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN J. GREEN, Defendant and Appellant.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN393234) APPEAL from a judgment of the Superior Court of San Diego County, David G. Brown, Judge. Affirmed in part. Reversed in part. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Stephen Green contends the court improperly admitted his statements to a California Highway Patrol (CHP) officer following a hit-and- run accident in November 2018 because he did not receive warnings required by Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) before he was questioned. He further contends the court erred by awarding $102,841.71 in victim restitution when the actual amount of loss could not be determined at the time. We conclude the court did not err by admitting defendant's statements to the CHP because it was not a custodial interrogation, and even if it had, any error was harmless. We agree that the court abused its discretion by setting the restitution amount instead of providing for the amount to be determined at the direction of the court when the amount of loss could be ascertained, and we will remand the matter for a restitution hearing.
BACKGROUND AND PROCEDURAL FACTS
After stopping for gas in the early morning of November 9, 2018, J.R. merged his motorcycle onto the slow lane of Interstate 5 north and began traveling between 60 and 70 miles per hour. He noticed a bright light in his left rearview mirror, a vehicle he estimated was traveling more than 90 miles per hour.
The vehicle hit J.R., sending him sliding to a stop in the middle of the lane, then tumbling to the shoulder of the road. The driver of the vehicle that struck J.R. did not stop. However, witnesses observed the accident and called 911.
James Gergurich was driving in the third lane from the center divide, heading north on Interstate 5 between Birmingham Drive and Santa Fe Drive, and he noticed a motorcycle ahead of him, in the lane to his right. He also saw a dark-colored sedan to his rear, in a lane to his left. He estimated the sedan was traveling between 85 and 100 miles per hour, and it changed lanes in front of Gergurich, cutting across the lanes of the freeway. He then saw the motorcycle's light get "squirrelly," and he could tell the motorcycle was out of control, so he concluded the sedan hit the left side of the motorcycle. The sedan driver did not stop.
Erica Carey was traveling north along the same section of Interstate 5, in the second lane from the left, when she observed a dark SUV come up from behind her to her left, traveling 90 to 100 miles per hour. After the SUV passed Carey, it crossed over all the lanes to the right. Carey noticed a motorcycle in the far-right lane; she saw the SUV go into the space where the motorcycle was and observed sparks fly. Then the motorcycle hit the ground. The SUV kept going, so she pulled over ahead of the motorcycle and waited for an ambulance.
Ibrahim Chishti told 911 dispatch that he was driving northbound on Interstate 5 just south of Birmingham and witnessed the hit and run of a motorcycle. He said the vehicle was a dark Subaru hatchback, and it was exiting on Encinitas Boulevard. Chishti told the operator that the right front tire of the vehicle was blown out, and it was emitting sparks from the rim it was traveling on.
San Diego Sheriff's Department Deputy Sean Dwyer received a call that there was a downed motorcyclist on Interstate 5 North between Birmingham Drive and Santa Fe Drive. Dwyer, who was nearby, pulled onto the southbound lanes of Interstate 5, then he u-turned at the next exit to reenter the northbound lanes. While he was en route to the scene, he observed a dark-colored Subaru hatchback ahead of him on the road. It had significant front-end damage and was driving on the rim of the front passenger side, and Dwyer noticed a grinding noise. Dwyer did not stop because his priority was assisting the motorcycle victim.
The San Diego Fire Department arrived and placed J.R. in an ambulance that took him to the hospital, where he was admitted as a trauma patient.
In the meantime, Daniel Thompson observed a car driving down the road in the vicinity of El Camino Real and Leucadia Boulevard that had no tire on the wheel rim and was emitting sparks. He called 911. He noticed damage to the front end of the vehicle, which he described to 911 as a dark-colored, four-door hatchback, possibly a Mazda.
Thompson had almost reached his home when he decided to return to look for the driver. He located the vehicle, called 911 again, and waited for police, then left when police arrived. Police asked him to return, and when he did, he saw a man sitting on the curb, but he did not see anyone enter or exit the vehicle.
At around 1:07 a.m., Dwyer received a radio call about a suspicious vehicle with significant damage in Encinitas, driving on a flat tire. Dwyer located the vehicle after following scratch marks in the road created by the tire rim; the vehicle was stopped in the middle of a two-lane, undivided road, and it sounded like the engine was still running. There was significant damage to the front right side of the vehicle, and the driver was still inside. Dwyer believed it was the same damaged vehicle he had seen earlier on the freeway.
The defendant was alone in the vehicle, sitting in the driver's seat with the keys in his lap. Dwyer suspected the driver was experiencing a medical emergency or was intoxicated. Dwyer assisted the defendant out of the vehicle, observing that defendant exhibited delayed speech and reaction and had an unsteady gait. Because of the potential connection between the freeway crash and the vehicle, Dwyer understood the matter would be investigated by the CHP, and he detained defendant to await the arrival of CHP.
CHP Officer Gabriel Morado, who had been investigating the crash scene at the freeway, received a call that a potential suspect vehicle had been located. Morado arrived at the scene, where he observed red streaks to the right fender of the Subaru.
Morado noted defendant displayed symptoms of intoxication, including slurred speech, bloodshot eyes, and an unsteadiness. He asked defendant questions to determine if defendant was impaired. Morado testified that defendant told him he had had one drink between 8:00 p.m. or 9:00 p.m. and 10:00 p.m. or 11:00 p.m. Morado also testified defendant said he had been in a collision; someone had hit him.
Morado was wearing a body camera during his encounter with the defendant, and the audio portion of their conversation was played for the jury. In it, defendant told Morado he had been traveling north on Interstate 5 at a speed of 15-20 miles per hour, trying to get home safely. He did not know how his car got damaged, but his vehicle was hit on the front. Defendant did not appear to Morado to know where he was or how his vehicle ended up damaged. Morado arrested defendant for driving under the influence and causing an injury.
At the CHP station, defendant took a breath test at 2:53 a.m., which registered his blood alcohol level at .182 percent. His second blood alcohol test, taken at 2:56 a.m. registered at .175 percent. At trial, a certified criminalist with the Sheriff Department's Crime Laboratory testified that based on those levels, at the time of the accident, a person would have had a blood alcohol level of somewhere between .18 and .26. The criminalist also opined that a person with those results driving under the conditions hypothetically similar to those under which defendant drove would have been driving impaired.
J.R. suffered a fractured left leg, fractures of two fingers on his left hand, and multiple abrasions. His injuries required surgery, and it took around six weeks for his leg and hand fractures to heal. He also developed blood clots during physical therapy that required additional treatment with blood thinners. Physical therapy lasted about six months. J.R., who was a law school student and also served in the Air Force Reserves, had to modify his class schedule and was not able to serve his Reserve weekends. He continued to suffer pain at the time of trial.
The jury found defendant guilty on three counts: driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) with a blood alcohol concentration of 0.15 or more (§ 23578; count 1); driving with a measurable blood alcohol causing injury (§ 23153, subd. (b)), with a blood alcohol concentration of 0.15 or more (§ 23578; count 2); and hit and run with property damage (§ 20002, subd. (a)). It found not true that defendant personally inflicted great bodily injury upon J.R. in the commission or attempted commission of the offenses (Pen. Code, §§ 1192.7, subd. (c)(8), 12022.7, subd. (a).)
Further statutory references are to the Vehicle Code unless otherwise specified.
He was sentenced to 270 days to be served through probation work furlough and five years of probation. He was also ordered to pay several fines, fees, and assessments, including $102,841.71 in direct victim restitution. (Pen. Code, § 1202.4, subd. (f).) Defendant timely appealed.
DISCUSSION
I
ADMISSION OF OFFICER BODY CAMERA RECORDING
A. Additional Facts
The prosecution brought a motion in limine seeking to introduce defendant's answers to the officers at the scene. Defense opposed the motion, citing Miranda and arguing defendant was in custody and should have been advised of his rights before questioning.
The trial court held an Evidence Code section 402 hearing, which consisted of testimony from Deputy Dwyer and Officer Morado.
1. Deputy Dwyer's Hearing Testimony
After Dwyer had responded to the motorcycle accident, he received another radio call that he believed was related to the hit and run on the freeway. He responded to the area and began looking for the vehicle matching the description. He approached the Subaru with emergency lights flashing and observed defendant in a "semi unconscious" state. Defendant was the only person in the vehicle, and he was seated in the driver's seat. Dwyer was unable to wake defendant, so he turned off the engine, placed handcuffs on defendant in the vehicle, and waited for paramedics. When defendant awoke, Dwyer identified himself, explained defendant had been handcuffed, and had defendant step out of the vehicle to the curb.
Dwyer did not read defendant Miranda rights because it was not his investigation, and CHP was already on the way. Dwyer did not question defendant about the accident or about being under the influence; he asked defendant whether defendant had identification and what defendant was doing. He testified his tone was "conversational" and "small talk." Dwyer suspected defendant was intoxicated based on how he was presenting, but Dwyer knew CHP would handle the matter.
Dwyer also testified that three to five other uniformed deputies arrived separately, with their patrol emergency lights activated, which was necessary because they were in the middle of the street.
Once CHP officers arrived, Dwyer remained on scene for a few minutes, until his handcuffs were returned, and then he left. He did not observe Morado act aggressively or threateningly toward defendant.
2. Officer Morado's Hearing Testimony
Morado testified that he received a radio call about 20 minutes after he arrived on the scene of the motorcycle accident, and he went to the Subaru's location based on information that the Subaru may have been involved in the crash. When he arrived at the Subaru, there were approximately five deputies present in addition to Dwyer; three or four vehicles had emergency lights activated. Morado also observed defendant sitting on the curb, handcuffed.
Dwyer explained to Morado how he found the Subaru. Morado did not ask if Dwyer had read defendant his Miranda rights. He spoke with Dwyer and another witness to make sure he understood the facts before he talked to defendant.
Morado began questioning defendant about 13 minutes after he arrived. Some of the deputies had departed by this point. Before questioning defendant, Morado believed he had reasonable suspicion that defendant was a suspect in the hit-and-run accident.
Morado patted down defendant, told defendant that he had been handcuffed for officer safety and investigatory purposes and that he was not under arrest, and he told defendant that he would remove the handcuffs if defendant agreed to stay calm. Morado did not read defendant his rights. Defendant said he understood he was not under arrest. Morado asked defendant general questions. At this point, Morado believed he had probable cause to arrest defendant, and he began administering field sobriety tests on the public street. For each test, defendant indicated he understood. Defendant declined to participate in the breathalyzer.
After the initial questions and the field sobriety tests, Morado placed defendant back in handcuffs and told him he was under arrest.
3. Ruling on the Motion in Limine
The trial court heard arguments from the attorneys. The court stated that it had reviewed the written materials and considered the testimony of witnesses and the attorneys' argument, and it granted the motion in limine. It did not offer specific reasoning or provide factual findings in its order.
B. Defendant's Statement Properly Admitted
Defendant contends the court erred by admitting his statements to Officer Morado because he made them without first being notified of his rights under Miranda, supra, 384 U.S. 436.
1. Legal Principles
To safeguard a suspect's privilege against self-incrimination, Miranda requires law enforcement to advise the suspect that "he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed to him prior to any questioning if he so desires." (Miranda, supra, 384 U.S. at p. 479.) Miranda prohibits the prosecution from introducing statements made by a defendant during a custodial interrogation unless, before making the statements, the defendant is advised of his Miranda rights. (Dickerson v. United States (2000) 530 U.S. 428, 435.) To introduce such statements, the prosecution must show by a preponderance of evidence that the defendant voluntarily and knowingly waived his Miranda rights. (Miranda, supra, 384 U.S. at pp. 475, 479; People v. Sapp (2003) 31 Cal.4th 240, 267 [prosecution bears burden by preponderance of evidence].) These requirements exist to reduce the risk of a coercion. (Sapp, at pp. 266-267.)]
For the interrogation to be custodial, a defendant must be in custody. "Custody" requires "circumstances that are thought generally to present a serious danger of coercion." (Howes v. Fields (2012) 565 U.S. 499, 508-509 (Howes).) "Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest." (People v. Moore (2011) 51 Cal.4th 386, 395 (Moore).) Custody is determined by considering the objective circumstances of an interrogation and asking if a reasonable person in those circumstances would feel free to terminate the interrogation and leave. (Howes, at p. 509; Maryland v. Shatzer (2010) 559 U.S. 98, 112.) However, as the Attorney General notes, "[n]ot all restraints on freedom of movement amount to custody for purposes of Miranda." (Howes, at p. 509.) We must also consider whether "the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." (Ibid.)
Circumstances that a court considers in evaluating custody include the location of questioning, the duration of questioning, statements made during questioning, and release at the end of questioning (Howes, supra, 565 U.S. at p. 509; Moore, supra, 51 Cal.4th at p. 395), as well as the ratio of officers to suspects, the demeanor of officers, the nature of questioning, and whether questioning was aggressive or confrontational (People v. Bejasa (2012) 205 Cal.App.4th 26 (Bejasa)). Custody for purposes of Miranda generally does not include a temporary detention for investigation; such a detention allows an officer to ask the suspect a moderate number of questions to gather information to confirm or dispel the officer's suspicions. (People v. Clair (1992) 2 Cal.4th 629, 679 (Clair).) No single factor is dispositive. (People v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)
We review the trial court's decision to suppress a statement under Miranda de novo. (People v. Waidla (2000) 22 Cal.4th 690, 730.) We review a court's factual findings in ruling on a motion to suppress statements under Miranda for substantial evidence. (Ibid.)
2. Analysis
Defendant contends he was in custody when Morado questioned him; thus, he was entitled to Miranda warnings, and the failure to apprise him of those rights made his statements to Morado inadmissible. Defendant compares his situation to the one presented in Bejasa, where the appellate court concluded the defendant was in custody and therefore entitled to a Miranda warning before he was questioned. (Bejasa, supra, 205 Cal.App.4th at p. 37.) Bejasa was handcuffed by an officer responding to an automobile accident. (Id. at pp. 36-37.) Before the responding officer handcuffed Bejasa and placed him in a patrol car, Bejasa incriminated himself by telling the officer he was on parole, consenting to a search that uncovered two syringes, including one that contained a liquid, and by admitting the syringes were for shooting up methamphetamine. (Id. at p. 37.) When the defendant was placed in the back of the vehicle, he knew it was due to a possible parole violation. (Ibid.) The appellate court explained that while that did not constitute a formal arrest, it supplied all the indicia of it: "a reasonable person in defendant's position would know that possession of methamphetamine and related paraphernalia is a parole violation and a crime, and that arrest would likely follow." (Id. at p. 37.) Because of those circumstances, the later removal of the handcuffs and release of Bejasa from the patrol vehicle was not enough to overcome the custodial nature of his detention. (Id. at p. 38.) So, when a second officer subsequently questioned him in the presence of several other police, it was in the context of having been detained for a possible parole violation and subject to Miranda. (Id. at pp. 37-38.)
The appellate court also concluded any error in introducing Bejasa's statements was harmless because the statements he made before he was handcuffed and placed in the patrol car were incriminating. (Bejasa, supra, 205 Cal.App.4th at p. 45.)
However, Bejasa is distinguishable. Although defendant in the present case was handcuffed by the responding officer, unlike the responding officer in Bejasa, Dwyer did not conduct any preliminary investigation. Dwyer did not search defendant, did not place defendant in a patrol car, and did not convey to defendant that arrest was likely to follow. Further, defendant did not make incriminating statements to Dwyer before being handcuffed; he was semi-conscious, and his restraint was for the purpose of officer safety.
While defendant's freedom of movement was curtailed to some degree because he was handcuffed for a period of time and he was detained even after their removal, defendant was not under any serious danger of coercion that established custody under the circumstances. Dwyer told defendant he was handcuffed but did not offer a reason. His communication with defendant was not aggressive or investigatory; he did not speak with defendant about the motorcycle accident or about driving under the influence. And his communications with defendant were conversational and non-threatening. (People v. Andreasen (2013) 214 Cal.App.4th 70, 87, 89 [distinguishing casual conversation from interrogation].) He was not investigating the hit-and-run accident or whether defendant was driving while intoxicated; he was leaving that to the CHP. Thus, at the point that Morado arrived, defendant was not in custody; he was detained.
When Morado arrived, there were three Sheriff's vehicles and around five Sheriff's deputies present securing the scene in the middle of the intersection. But shortly after his arrival, the number of peace officers began to dwindle, and even Dwyer left the scene once he received his handcuffs. (See People v. Lopez (1985) 163 Cal.App.3d 602, 608 [identifying ratio of officers to suspect as factor in Miranda custody determination].) Thus, the peace officer ratio does not support a conclusion that defendant was in custody.
Additionally, defendant's detention was not unreasonably lengthy, and the questioning was not accusatory. He was restrained in handcuffs from shortly after 1:14 a.m. when Dwyer arrived until Morado removed the handcuffs around 1:40 a.m., 13 minutes after his arrival. During some of that time, defendant was not aware he was restrained because he was semi-conscious. As we have detailed, no investigatory questioning occurred while he was handcuffed, and there was no evidence that he made any incriminating statements during that time. After the handcuffs were removed, Morado asked general questions about how defendant's vehicle got damaged, but he did not accuse defendant of hitting anyone. (See People v. Bellomo (1992) 10 Cal.App.4th 195, 199 [discussing type of questioning that constitutes interrogation].) Further, Morado's questioning and the field sobriety tests were in public view on an open roadway, "reduc[ing] the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements" (Berkemer v. McCarty (1984) 468 U.S. 420, 438).
Taking into consideration the totality of circumstances here, including the ratio of officers to suspects, the duration and location of questioning, the demeanor of the officers, and the nature of the questions themselves, we conclude the environment did not present inherently coercive pressures and therefore was not custodial in nature. (See Howes, supra, 565 U.S. at pp. 508-509; Clair, supra, 2 Cal.4th at p. 679; Bejasa, supra, 205 Cal.App.4th at p. 36.)
Finally, defendant contends that because Morado believed he had probable cause to arrest defendant before the questioning at issue, defendant's detention was custodial. But Morado's subjective opinion is not a factor we consider when determining whether defendant was in custody for purposes of Miranda. We consider the objective circumstances and whether they created a "serious danger of coercion." (Howes, supra, 565 U.S. at p. 509.) And as we have explained, here they did not.
C. Harmless Error
Even if we were to conclude that the court erred by admitting defendant's statements to Morado, any error was harmless. Defendant contends there is a reasonable probability that the inclusion of his statements affected the outcome of the case. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) Defendant's position is that his statements to Morado that he was driving the vehicle and that he had one drink between 8:00 p.m. or 9:00 p.m. and 11:00 p.m. probably led the jury to convict him because his statements were used to demonstrate a consciousness of guilt during closing arguments.
But there is ample evidence to support the conviction in this matter excluding the statements made by defendant to Morado. Two witnesses of the accident described the vehicle that hit J.R. as a dark SUV, one of which identified the general vicinity to which that vehicle was headed and also noted that it was a Subaru hatchback with the front tire blown out, emitting sparks from the rim. Dwyer also observed a dark-colored Subaru hatchback making a grinding noise and driving on the rim of the front passenger side while en route to the motorcycle accident location. Thus, before Sheriff's deputies or the CHP ever approached defendant, there was evidence connecting a vehicle similar to his, also driving on its rim, in the vicinity where his vehicle was located.
Another witness observed a four-door hatchback in the vicinity of where previous witnesses had seen the SUV exit, also driving on the wheel rim and emitting sparks. Again, this description matched the description of the vehicle offered by other witnesses. And when Dwyer located the vehicle after following scratch marks made in the road from the rim of the front tire, he discovered a vehicle with significant damage to its front right side, and he believed it was the same vehicle he had seen earlier when he was en route to the motorcycle accident. These physical descriptions and the location of the vehicle suggested it was the same one that hit J.R.
Further, defendant was alone in the vehicle and seated in the driver's seat, suggesting he was the driver of the vehicle. And although Dwyer did not conduct any investigation and only detained defendant until Morado arrived, he observed that defendant exhibited delayed speech and reaction and had an unsteady gait, supporting the suggestion that defendant was intoxicated. Morado's observations corroborated those of Dwyer; he noted slurred speech, bloodshot eyes, and an unsteadiness. Thus, before any questioning began, there was evidence tying the vehicle and its driver to the hit-and-run accident on the freeway.
Defendant does not suggest that the CHP officer improperly conducted field sobriety tests; nor does he contend those details were erroneously shared with the jury. Those details bolster the evidence that defendant was impaired while driving. Moreover, defendant's breath tests showed he had blood alcohol levels more than double the legal limit hours after his vehicle was located in the middle of the intersection, and the criminalist opined that a person driving under similar conditions would have been driving impaired.
Even without any admission by defendant that he was the one driving the vehicle, that he did not know where or how his vehicle got damaged, or that he was driving on a freeway traveling 15-20 miles per hour, the other evidence in the case was so strong that it is not reasonably probable the outcome would have been different. (See Chapman, supra, 386 U.S. at p. 24.)
II
VICTIM RESTITUTION
Defendant argues the court abused its discretion by awarding $102,841 in direct victim restitution. The Attorney General agrees defendant is entitled to a further restitution hearing. Accordingly, we will remand the matter for a restitution hearing.
A. Additional Facts
The probation report recommended a victim restitution award of $102,841.71, which included "the cost of transportation, lost military wages, and medical bills thus far."
The supporting documentation consisted of an email from J.R. to the probation officer, an invoice from a driver, and pay stubs for military weekends. J.R.'s email to the probation officer stated he had missed two military weekends, that he did not know the exact amount of medical bills to date, but they totaled around $95,000 so far, and he spent about $500 on Uber rides for physical therapy appointments. He did not provide a receipt for the Uber fares. J.R. provided an invoice from his driver that documented rides totaling 234.4 miles, at $0.58 per miles, for $135.95 and also charged an hourly rate of $150 per hour for 42 hours of driving time, to compensate the driver for the consulting work he missed while driving J.R. This totaled $6,435.95. The probation report also noted lost income of $452.88 for each military weekend.
At the sentencing hearing, defendant asked the trial court to reserve restitution and set a future restitution hearing. Defense counsel argued that the medical bills were subject to a personal injury settlement, noting J.R. had not paid any medical bills to date. He explained the medical bills would likely be reduced in amount, as well, that they could only be valued as the amount accepted by the provider and not the amount billed, and that the trial court should credit the defendant with payments from his insurance company to the victim. Defendant also argued J.R. had provided no evidence of the $500 he spent on Uber rides, that the $6,300 invoiced for driving 42 hours overstated the amount of time spent driving and overcharged for the work, and that there was no evidence J.R. actually paid for the rides.
The court acknowledged that defendant's arguments about the effect that settling medical bills and the insurance offset would have was correct, but it nonetheless concluded it would be more efficient "to impose the full amount of restitution suggested and then revisit the amount of restitution . . . ."
B. Analysis
"Victims are entitled to an amount of restitution so as to make them whole but not more than their actual losses arising out of the defendant's criminal conduct." (People v. Nichols (2017) 8 Cal.App.5th 330, 342 (Nichols); People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172 (Chappelone) [victim restitution must be for actual loss].) The party seeking restitution bears the burden of providing an adequate factual basis by a preponderance of the evidence. (People v. Jessee (2013) 222 Cal.App.4th 501, 506-507.) Once the prosecution makes its prima facie case showing the victim's loss, the burden shifts to the defendant to show the loss is less than that claimed. (Ibid.) Further, Penal Code section 1202.4, subdivision (f) requires a restitution order to provide for the amount to be determined at the direction of the court when the amount of loss cannot be ascertained at the time of sentencing.
We review a court's award of victim restitution for abuse of discretion. (Nichols, supra, 8 Cal.App.5th at p. 342; People v. Taylor (2011) 197 Cal.App.4th 757, 761.) The trial court has broad discretion in setting the amount of restitution, but the amount must be reasonably calculated to make the victim whole. (Nichols, at p. 342.)
The trial court acknowledged the amount set in restitution did not represent the victim's actual losses. Given the uncertainties before the court at sentencing, it was an abuse of discretion to set the direct victim restitution amount at $102,841.71 instead of following Penal Code section 1202.4, subdivision (f) and ordering the amount to be determined at the court's direction when the amount of loss could be ascertained. The Attorney General concedes that defendant was "unquestionably entitled to greater specificity" than supplied by the prosecution here and requests we strike the restitution order and direct a further restitution hearing. (Nichols, supra, 8 Cal.App.5th at p. 342; Chappelone, supra, 183 Cal.App.4th at p. 1172.) Accordingly, we will direct the court to strike this amount and remand the matter for a restitution hearing.
DISPOSITION
The trial court is directed to strike the victim restitution portion of its sentencing order and set a restitution hearing. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: AARON, J. DO, J.